The ABC’s Australian Story about David Hicks and he-said she-said journalism

The ABC has made a documentary about David Hicks and screened it in an double episode of Australian Story. It’s still on iView and I suggest you go check it out if you’ve not seen it. It went to some lengths to be ‘balanced’ but somehow the balance seems to me to tilt too far towards Hick’s persecutors. Here are the basic facts as I understand them (Feel free to correct me on this). Hicks trained with the Taliban. He was a combatant for the Taliban for a short while. He was captured and no-one knew what to do with him because he hadn’t committed any crimes. He was detained without trial and without access to basic justice for five years. He was then returned after he pled guilty in a situation in which it is clear that his guilty plea was extracted for political face-saving reasons and the circumstances of the guilty admission are such that there is not a court in any civilised country that would regard it as properly obtained.

People like Howard, Ruddock and Downer are interviewed along with an anti-terrorist security analyst. They make it clear that there are some inconsistencies in Hick’s story concerning what he knew when and also the degree to which he supported Islam, although nothing very substantial emerges from this. Howard, Downer and Ruddock say things like that the Australian diplomat who went to see Hicks said he wasn’t being mistreated. In one extraordinary comment I think it is Downer says that terror suspects who have been detained by the Americans “always claim that they’ve been mistreated”. This is apparently evidence that they have not – or perhaps that some of them are lying – who knows?

Now I’ll admit to the fact that my own dim view of human nature is that people can do some seriously nasty things when encouraged to do so in groups, and when they’re away from the cleansing power of sunlight. Abu Ghraib didn’t surprise me in the slightest. However one doesn’t need to be suspicious. One doesn’t need the pictures of the tortures at Abu Ghraib. One just has to look at the pictures the Americans circulated of hooded suspects, bound on stretchers, isolated in open cages in camps. And yet these kinds of statements by Downer and co. to the effect that Hicks was not mistreated repeatedly went unchallenged. It illustrated the shabby depths to which ‘he said-she said’ journalism can descend when these spokespeople for the Howard Government were not held to account for the fact that, whether you think Hicks is a stupid and possibly dangerous kid who got himself in way too deep or think he was a horrible terrorist, what happened to him was a gross violation of the rule of law. I’d even be sympathetic to the idea that, in the right circumstances one might want to lock suspects up without being able to prove much against them. But why torture them for years and years?

And it’s true I’m just going on David Hicks’ assertions that he was treated the way he says he was, which I’d call torture. I’m also going on my commonsense all other things considered. And I’m outraged that the other side of this argument – was never really tested. How do these guys think he spent his days? Was he in solitary confinement? For how long? What do the camp records tell us? What was the size of his cell. Was he in an open cage for weeks? What did the Australian diplomat see? Why was he confident that Hicks wasn’t being mistreated? How could he have known?

We didn’t get any accountability of that kind out of this program.

In the end the program wasn’t made by people who understood the real principles at stake. David Hicks suffered terribly I’m guessing. But there was a war on. A lot of other people suffered much more, and were completely innocent of his stupidity. It shouldn’t have been a he-said she-said drama in which one either sympathises with Hicks or his assailants. It should have been a program which, amongst other things sought to hold our officeholders to account on matters of principle that concern us all .

And good on former Liberal leader in NSW John Dowd for believing in something – like liberalism. Like he said, the disregard for basic principle, the preparedness to sit around while someone to whom you owe a basic duty of protection is tortured for five years, made you ashamed to be Australian.

“He was a combatant for the Taliban for a short while. He was captured and no-one knew what to do with him because he hadn’t committed any crimes.”http://rohitrevo.com.au/wp/2009/12/kashmiri-pandit-community-outraged-over-david-hicks/
Once captured the lack of co-ordination between India and Australia on this issue looks to have been interpreted as ‘Hicks didn’t commit any wrong doing’.
Trying to kill indian soldiers is not adventure tourism.

I guess like a lot of other people, I think that if you go to the other side of the world to fight with the most oppressive regime on Earth, you may as well be guilty — indeed, I’m surprised it’s not a crime. I imagine that even as a journalist this is hard to put out of your mind, especially because I think that many people tend to like an eye for aneye style justice (or at least punishment vs. rehabilitation). To some extent, he was lucky — the Americans seem somewhere in the middle for how nasty they’re willing to be. For example, I’m not sure how many foreign mercenaries the anti-Gaddafi forces let live after they captured them, but I doubt it was very many, and I don’t see people complaining too hard about that and I also doubt it’s going to be considered a war crime. So unless people start complaining, then we’re clearly complicit in assuming that this is a crime even if technically it isn’t.

Regardless of the degree of Hicks culpability the US and by default the Australians acted very badly. This unprincipled approach to justice has been further extended by Australia’s treatment of asylum seekers.

I agree with the above comments. Fortunately for morality but unfortunately for principal, Nick, I think the majority of Australians would sum up the basic facts more like this:
1) Hicks was a right c*** with small-penis syndrome
2) Hicks went to join the Taliban, who are pretty much the antithesis of civilisation as we know it mainly in order to make his d*** feel bigger, and not be intimidated by all those powerful women and jews running amok in Australia
3) Hicks missed the bullet with his name on it
…the end.

Now I do appreciate the point of principle, but I think it just gets obscured in the fact that he seems to have literally woken up one day and decided to join, quite literally, the forces of darkness.

If you prefer you might say that he ripped up his subscription to the social contract and shat on it. After all, as you are aware, our ongoing existence is partly predicated on our ongoing decision to not start raping and killing wantonly in the street, but he appears to have made pretty much the contrary decision. As a consequence his claim to his rights under that contract are seen by most people as somewhere between bullshit and poppycock depending on where they were raised.

Consider for a second that the reason that he had to go to Afghanistan was that if he had tried to be a Taliban here and wave his gun around shooting people and yelling about Jews and women, we would have shot him and if he lived we would have jailed him for most of eternity. Personally I don’t think we should be much more lenient just because only darker women were involved (if not directly by his actions, very much so indirectly by his support and allegiance to the Taliban).

I fully agree with Nick that we should strive for high standards of regards for human dignity, even when it concerns others we suspect of not sharing those standards. There are occasions were the threats are so massive and immediate one cannot hold on to high standards, but a single Australian joining foreign enemies is not a sufficient threat to abandon what we stand for.

I see Yobbo at comment #7 calling for the assassination of a living Australian citizen. He is overstepping a line of decency here.

Well having looked at all these comments, it seems to me that people are playing the game of whom one sympathises with. A kind of ‘strike a pose’ game. I didn’t think basic legal rights depended on whether the accused wins a popularity contest. The accused is supposed to be dealt with according to law. Now one can argue that the standard of law is not the standard of normal criminal trial, but rather some military analogue. Personally I’d favour that in this situation. But this was nothing like military justice at least as practised or as it should be practised in a civilised country.

Even on the matter of sympathy which I am arguing is not the essence of the matter, I’m surprised people are quite so proud of their tough minded approach. To test this for myself I ask myself what would I think if a David Hicks type had turned up in Hitler’s Germany in the late 1930s to ‘freedom fight’ for the Nazis. Recall there were a lot of people at that time who thought Hitler was just the ticket to straighten things out over there.

Of course had he done so he’d have been abetting horrendous crimes. Even there, I don’t think it is being particularly sentimental to take the view that Major Mori took, that the guy was an idiot and that if he had committed any crimes he should answer for them – this is indeed what Hicks’ father says was his own view.

And against the crimes of the Nazis or even the Taliban, it’s true that any injustice meted out to Hicks is small beer. But that’s not the point. We’re not here trying to make ourselves feel good. Indeed, it seems to me to be impossible to feel good in these horrible circumstances. We’re supposed to be working out what tolerable justice and prudence demanded (this isn’t particularly for Hicks, but for ourselves).

It might well have demanded a lengthy prison term. I don’t think anyone should be sanctioning five years of lawless torture.

I don’t think anyone should be sanctioning five years of lawless torture.

Again with the torture claims. Is there any proof that Hicks was ever tortured? Or are you just taking his word for it, knowing what a trustworthy fellow he is and how he has absolutely nothing to gain by claiming he was.

Or are you saying that holding him was torture in and of itself? Because I’ve got news for you, it’s not.

Hicks was tried and convicted of providing material support to terrorism. For this, he should have got the death penalty. He is lucky not to, end of story.

It would appear (from the above) that Hicks major failing was that he sympathised with a group that had chosen to fight against an ally of his country of birth ie the state. He mixed with a bad bunch. Curiously the so called libertarians recommend death as a minimum response to such a crime. Even more curious is that they also recommend that the sentence be carried out before, or even in the absence of, a fair trial.

Such woolly headed thinking can only lead to the reduction of an individuals rights with a corresponding increase in the power of the state over the individual.

shorter rog: he’s a traitor but we still love him.
shorter the rest of us: he’s a traitor so wtf is he doing back here again?
Nick, what you are missing on your ‘why am I the only one with principles’ horse is that the rest of us are basing our position on principle as well, to wit, the principal that traitors aren’t Australians. I think that if they felt they had to release him they should have returned him to the country he had declared allegiance and fealty to. I don’t understand how an accident of birth means he came back here.
Now you clearly think that’s a bit harsh, I don’t; but really you are pitting your sympathies as much as your principles. Personally I do feel somewhat sorry for him but not enough to think that I have any obligation towards him and especially not that of extending Australian citizenship, which for all practical and moral purposes I take him to have renounced.

I’m with Patrick, although I don’t think he should have been torturted or held for 5 years without trial. I’m just surprised that what he did was legal — I also don’t think the WWII analogies are especially good, because if I had joined the Nazi party and got caught, then the punishment would have been <a href="http://en.wikipedia.org/wiki/33rd_Waffen_Grenadier_Division_of_the_SS_Charlemagne_%281st_French%29&quot; death, even from the relatively pleasant French (cf., the Russians). In addition, on the basis that it is legal, it should be fine for me to join the unit of the Burmese government that probably takes the Taliban as their role model (even as an organizer and not a direct perpetrator). If that’s legal, I think that’s crazy.

Hicks shouldn’t have been shot but it’s obvious he is either a nutcase or a terrorist sympathizer. Yobbo is right – the Taliban do kill young girls for attending school and yet this was Hicks’ choice of preferred regime.

For the life of me I cannot see the point of agonizing over the past or the future of this awful person. He is treated as some sort of hero by the left. We have 23 million more interesting people in Aus.

“Harry is right but it was the use of ‘unlawful’ means by the US which gave him martyr status.”

What was unlawful about it in US law? It seems to me that the US government found a loophole to oppress people in a not dissimilar way to what Hicks did. Hicks got to help kill 14 year old girls yet this was legal, and the US got to lock him up and torture him, and this was apparently legal also.

If it wasn’t a loophole, I can’t see how they would have been able to keep him for five years, torture him a bit, and then not pay compensation when they were discovered to have broken the law doing all of this.

Godwin’s Law of Nazi Analogies [a.k.a the Sexton-Godwin Law]:
As an online discussion grows longer, the probability of a comparison
involving Nazis or Hitler approaches one.
[Usenet Message-ID: , 18 Aug 1991;
possibly posted in this form as early as 1990 on The WELL.]

That’s nice, mozzie, but apart from statistical/sociological fact the point of Godwin’s law is that the discussion ends as a result of inane hyperbole, which isn’t the case on this thread as far as I can see. Or do you think that comparing the moral level of Taliban to Nazis is too extreme?

Expanding on Judith Sloan’s comment (#11), there are several disturbing things about Hicks’ treatment by the Americans, irrespective of what we may think of Hicks as an individual:

(1) He was held in custody for years without charge and without any of the rights of a POW;

(2) He was eventually charged with an offence of “providing material support for terrorism” which did not exist at the time Hicks engaged in the conduct said to constitute the offence (it was created by the Military Commissions Act 2006 i.e. some 5 years later). Apparently this does not breach the prohibition on retrospective laws in clause 3 of Article I, section 9 of the U.S. Constitution, although I must confess I don’t understand why.

(3) The organisation he was accused of materially supporting (Lashkar-e-Taiba) was not classified as a terrorist organisation by the US at the time Hicks was associated with it.

(4) Hicks could not meaningfully be classified as a traitor. He could not be a traitor to the US because he was never a US citizen or resident nor did he ever fight against US or Australian forces.

(5) Hicks claims to have been tortured by the Americans. I would not regard him as a witness of any credibility but nor are the the Americans. They certainly tortured lots of prisoners in similar positions to Hicks (at least on any sensible definition of torture) so there’s no compelling reason to dismiss Hicks’ claims out of hand.

Surely all these issues are matters of genuine and serious concern irrespective of Hicks’ personal qualities, if we have any regard whatever for rule of law.

We have plenty of regard for rule of law as it applies to civilian crimes.

But Hicks was not a civilian and therefore is not afforded the luxury of civilian rights. He is an enemy combatant in a war, and as such the US has the right to hold him until the war is over, so in all fairness they would be completely within their rights to still be holding him now, since the war against the Taliban in Afghanistan is still ongoing.

He could not be a traitor to the US because he was never a US citizen or resident nor did he ever fight against US or Australian forces.

As I understand it he does not have to fight against our own forces to be a traitor.

engages in conduct that assists by any means whatever, with intent to assist:
(i) another country; or
(ii) an organisation;
that is engaged in armed hostilities against the Australian Defence Force

Crime is not the only reason to imprison people. Hicks joined a foreign army to fight us. That’s enough reason to imprison him for a bit. POWs get held till the war is over. The idio thought himself a soldier so do him the favor of treating him that way.

Gee we have short memories. Heres a question for the rabid libertarians here. Which country was supporting radical Islamic terrorist during the Cold War? Of course back then they weren’t terrorists they were freedom fighters… even if they killed 14 year old girls for attempting to get an education.

The rule of law is not a concept applying only to civilians (as you assert). It wouldn’t be much of a concept if we only had to apply it to people we liked. In fact the US Supreme Court even applied it to Osama Bin Laden’s driver in Hamdan v Rumsfeld, as Stevens J explained for the majority:

It bears emphasizing that Hamdan does not challenge, and we do not today address, the Government’s power to detain him for the duration of active hostilities in order to prevent such harm. But in undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction.

In other words, Hamdan did not challenge that he could be detained as a POW. I suspect nor did Hicks. But the Bush administration did not purport to detain or treat either of them as POWs. Instead they detained them as “unlawful enemy combatants” said to be entitled at best to the roughest of rough justice and certainly not to be treated as POWs. Many aspects of the Bush administration’s asserted entitlements against enemy combatants were held unconstitutional in Hamdan and then Boumedienne.

Another thing that bemuses me is that people say that Hicks is regarded as a hero and martyr by the left. But if you are campaigning about something it’s inevitable firstly that in order to campaign people will simplify their message – and or even if they don’t it will be portrayed in as sensational a way as possible by the media. And of course there will always be people who haven’t thought about it much and talk about the guy as if he’s a hero. So what? Isn’t it always the case that some advocates simplify, dumb things down and generally exaggerate? It just goes with the territory. Major Mori said he was an idiot. That’s what most of his defenders say. But of course it won’t be hard to find people who take it further. Politics is like that. Seems completely to be expected to me.

Ken, I recall reading that the USC had decided that the geneva convention applied despite US govt arguments to the contrary. I guess when thinking about the war on terror one has to make some comparisons to Nuremburg.

NG, I suspect it was more of an “the enemy of my enemy …” type thing. If he’d not been imprisoned by the evil Bush/hoWARd war-machine pretty much everyone would have thought Hicks a moronic cock-sucker. I doubt even Lee Rhiannon would otherwise sympathise with Hicks, despite apparently being a fellow anti-zionist.

I find it a bit strange that individuals who jump up and down and demand that individuals like David Hicks be tortured and/or executed, generally have little to say about the punishment of people like this. From where I stand the crimes of Mr Hicks pale in comparison.

Major Mori said he was an idiot. That’s what most of his defenders say.

Shouldn’t be too hard to link to a quote then from some left-wing site describing him as such. The only people I have seen call him an idiot are his father and Major Mori, presumably because they thought that the best way of getting him off the charge.

The left of course wanted him charged so they could martyr him, which is why they call him a hero.

I find it a bit strange that individuals who jump up and down and demand that individuals like David Hicks be tortured and/or executed, generally have little to say about the punishment of people like this.

Yobbo, I don’t think that there is anything strange about expecting that people who do commit war crimes should face the sort of justice that you think David Hicks should face. The hyperbole about David Hicks being an evil person just doesn’t stack up when you compare him to those who do commit war crimes. Really is it that hard to see?

“Siding with the enemy” could find most players guilty. It is no secret that a proxy war against communism was fought in Afghanistan and the US had a major role in both creating and supporting the Taliban and the US efforts to destabilise Afghanistan were successful, for all the wrong reasons.

“It matters not if Hicks is/was evil.
It matters only that he sided with the enemy.”

Actually, I think it matters a lot. At least to me there’s a moral issue — If you side with truly evil forces despite being well educated and coming from an entirely different place in the world, then you’re clearly at one of it, so if the other side decides to use dirty tactics against you (e.g., legal loopholes), I’m not going to be too fussed.

Hicks was a terrorist and a traitor, or near as damn it, given that laws are now qualified and conditioned to allow judges to interpret them to their hearts content.

A terrorist traitor deserves at least a double digit period of incarceration. With possible time off for good behaviour if he shows appropriate remorse, contrition and fully re-cants his vile world-view.

But Hicks has done nothing of the sort, continues to protest his innocence and confects outrages over his supposed rough treatment. Whilst profiting from his crimes through book publications and various other publicity stunts.

So Left-liberals have decided to make him a folk hero of the anti-war movement. And legal-liberals have darkened acres of newsprint trying to find legal loopholes for him to slither through. Good move guys, that’ll win you lots of support out in voterville!

This has not made Hicks a more sympathetic figure in the eyes of the general public, whose moral compass still gives true bearings. But it makes Left-liberals look more contemptible in my eyes. A difficult feat, since I generally have the contempt dial up to 11 when considering their odious world-view.

My advice to Left-liberals: give him up as an unworthy lost cause. At least refugees make more plausible candidates for public sympathy.

Hicks not taking up arms against Australia is what has saved his life.
If not for that, & assuming the coterie of 5th columnists advocating for him got him loose, as he is today, he’d be found one morning face down in a ditch. Simultaneously the RSM at the nearest army barracks would be swearing to his CO that all the men were on base last night & nobody left the barracks, not once.

“he-said she-said journalism” is right. The producer of this story, Helen Grassville completely lied to the family, and did not present all sides of the story. There is evidence that would have proven David’s innocence that was omitted from the program. If you want David’s story you should read his book. If you don’t beleive him- you dont have to- there are 30 pages of references from independent sources that back up what he is saying. Thanks for the article Nicholas.